Against her will, a journalist van de Volkskrant, because of a piece she wrote for the newspaper, must testify in an appeal trial against two convicted Syrian terrorists. This is confirmed by her lawyer.
The journalist, Ana van Es, invoked the so-called right of non-disclosure for journalists before the Court of Appeal on Wednesday, in order not to have to answer questions and to protect sources. According to her lawyer, even calling a journalist to question witnesses about his or her work is harmful to the free gathering of news.
Van Es had to appear before the Court because in 2019 in Syria, together with a colleague in the Netherlands, she extensive article wrote about the two Syrians. The two (brothers) were already suspected in the Netherlands of membership of the terrorist organization Jabhat al-Nusra.
“The information that the Public Prosecution Service in the Netherlands gathers with difficulty is on the street in Syria,” the piece stated. And that too de Volkskrant before the article had spoken “with several local residents who state that the brothers were active within the Nusra Front”.
That made the piece interesting for the Public Prosecution Service, which, given the security situation in the country torn by civil war, was unable to conduct an investigation to collect evidence. The brothers were sentenced in 2021 to 15 years and 9 months, and 11 years and 9 months in prison, respectively.
Resource protection
According to the lawyer of one of them, Bart Nooitgedagt, the article not only formed the basis of the criminal investigation, but the OM has not ruled out using it as evidence. Before it could get that far in the current appeal, he wanted the journalist to appear before the Court of Appeal. He wanted to be able to test the reliability of the claims about his client. “My client denies, and there are things in the article that you can see as incriminating to him.”
Because Van Es invoked her legal privilege, Nooitgedagt was unable to question her and to test the reliability of the document, he says. “So the piece cannot contribute to the evidence.”
The journalist’s lawyer, Jens van den Brink, accuses the Court of Appeal of agreeing that Van Es was summoned for the witness examination. “What is often lost sight of is that source secrecy is not just about guarding who the source of an article is, but that the reason why it exists is that journalists should not become an extension of the judiciary and that sources should not be deterred.
“If it is possible that it is useful in a criminal case to bring in a journalist who also follows the case, to hear what her experiences are and who she has spoken to, then people will no longer talk to journalists. The mere fact that you ask a journalist to come can have a deterrent effect. Far too little account is taken of this in the Netherlands.”
Journalists’ right to professional privilege is not absolute, acknowledges Van den Brink. “If you have information that there will be an attack on Dam Square tomorrow, then that is something else. If there are extremely compelling circumstances, the right of non-disclosure may be infringed. When it comes to extremely important information, which is crucial in a case. But that cannot happen here at all.”
Thomas Bruning, secretary of the NVJ journalists’ union, is pleased that the judge has accepted that Van Es has invoked her legal privilege. He calls the fact that the Court agreed that she was summoned “not a good signal, but better half-turned than completely astray.”